Abhiram Singh Vs C.D.Commachen: An Inconsistent Doctrinal Application of Secularism

‘Secularism’ in its written form found its part in the Indian Constitution only after an amendment while the presumption of its presence was taken axiomatically by us. In spite of the long journey that the idea of secularism has travelled, from being found as a part of the basic structure of constitution by the Supreme Court in the famous S.R.Bommai’s case, it still lacks a doctrinal ‘rationality’ in its application. The recent Constitutional bench decision of the Supreme Court, Abhiram Singh Vs C.D.Commachen, interpreting Section 123 (3) of the Representation of People Act has furthered this effect. Rather than the ‘pragmatic’ take that the Constituent Assembly itself had about the role of religion in the country’s public life, the judgment takes a pedantic and mechanical view that frustrates several important underlying thought process that went into drafting the constitution. The issue before the court in this case was to interpret the content and scope of Section 123 (3) of the Representation of People Act, 1951 that defines what constitutes ‘corrupt practice’. More specifically the constitution bench was formed to determine whether 

1. the word ‘his’ that occurs in the section would imply restriction upon the candidate and his authorised agents from making any appeals on the ground of the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector (a broad interpretation) or
2. expression “his” in Section 123(3) must mean the religion, race, community or language of the candidate in whose favour an appeal to cast a vote is made or that of another candidate against whom there is an appeal to refrain from voting on the ground of the religion, race, caste, community or language of that candidate (restricted interpretation)

The majority view took to the broadest interpretation possible and included all restricted appeals made by a candidate within the sweep of corrupt practice under Section 123 (3) of the Act. Without concerning myself with other interpretational fallacies in the view delivered by the majority I am analysing here the conception of secularism enunciated by the majority. The interpretation of the court that all kinds of appeal made by the candidates or their agents, while canvassing for elections, as corrupt practice depends upon a distinct and paternalistic application of secularism that presumes certain naivety upon the voters. This approach requires the court to exercise its discretion to determine what constitutes corrupt practice which inherently introduces an unequal application of secular principles in electoral practices. It is in this context I propose to show how the present judgement furthers a doctrinal inconsistency with no precise identification of what constitutes secularism that can be identified by it. 

In the past, on one end canvassing on the basis of caste, namely, Rajput; issuing a Sikh Hukamnama for votes were found by the court to be corrupt practice, on the other end even an appeal in the name of Hindutva were found as not an appeal in the name of religion. However, if one notices, the judiciary has sought for a context specific adjudication which does not leave sufficient latitude for a principled application.  In fact, the same court which found Hindutva as an appeal to religion, later took a view that depending upon the context such an appeal can be held to be an appeal to religion. The present constitution bench decision ends up furthering this effect by its rhetoric engagement of the term ‘his’ and its content. This hides behind its reluctance to recognise the distinctive practice of religion that India has evolved over the period. By declaring that no kind of appeal to religion can be made it has essentially lowered the bar for prosecution under the section. Rather than formulating test which puts forward a contextual adjudication of any anti-secular appeals made by candidates or their agents the blanket rejection shows a reluctance of the court to engage with what it thinks to be divisive. The wrongful assumptions drawn by the judgment here to arrive at this conclusion are as follows

• Firstly, the electoral activity does not constitute a form of democratic public reasoning through which the general public could exercise their political choices, be it religion, language etc. The majority judgment clearly draws a line separating the religion and elections failing to recognise the symbiotic relationship that exists between the democratic inclusion of vulnerable minorities and the freedom to array an opinion in its favour. Words of Chandrachud J in his dissenting opinion is revealing in this regard

“Electoral politics in a democratic polity is about mobilisation. Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy.” [Paragraph 20]

Therefore, it is not always the case that any appeal made is religiously divisive. People, cutting across such religious differences, might see a merit in such an appeal and could possibly vote for them. Therefore, it would be wrong to assume that any appeal which is divisive is necessarily antithetical to the principles of democracy.

• Secondly, the mischief that is sought to be curbed here is the hate speech and the presumption that a different and a even more stringent standard is required to regulate the electoral speeches. In fact none of the judgments delivered by the majority deals with the effect that the such a conclusion could have on the freedom of speech and expression.
• Thirdly, there is a underlying paternalistic attitude that drives the court to presume that people are gullible enough to be swayed by emotions and rousing of passions by such speeches that it would interfere with the conduct of free and fair elections. Lokur J. quotes with emphasis the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra wherein a similar presumption was made in the following words 

“Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed.” [Emphasis Supplied]

This justification based on peculiar history in fact counterintuitively interferes with the exercise of free choice and agency by the voters themselves.

• Fourthly, when it is permissible for the formation of political parties on religious lines it is not logical to state that they cannot be allowed to form the public opinion on religious grounds.

The judgement in its earnestness to cleanse the system from the sectarian appeals during elections has failed to recognise the important distinction that is required to be drawn between the religion playing a role in the actions of the state as against the amassing of public choice to protect the interests of particular section of the community. If at all this is to show an underlying intention of the court to show a departure from a principled and equal engagement of all religions to a complete disengagement from all things that has elements of religion, it is not clear from the words of the majority. Even otherwise, the clear church-state ‘wall of separation’ as practiced by the western democracies does not find any normative support from the Indian practice of secularism. This has been found by the court to be so in the past. The Delhi High Court’s decision rejecting the challenge government’s decision to celebrate the salvation of Lord Mahavira of Jainism clearly enunciates this principled engagement of the state on all matters that concerns with religion. The court in this regard approvingly quotes the then Vice-President Dr. Radhakrishnan as follows "I want to state authoritatively that secularism does not mean irreligion. It means we respect all faiths and religions. Our State does not identify itself with any particular religion." The precise distinction that must drawn between the appeals that are potentially divisive and those that are genuine rallying of public opinion to the cause of a particular section of the society gets muddled in this overarching application of secularism.

A Pragmatic Approach

Evidence from the Constituent Assembly debates clearly demonstrates that the choice made by the Constituent Assembly at various instances, like not including the word ‘secular’ explicitly in the constitution, non-inclusion of the draft provision against religious conversions (see here), is not from such a myopic view of the democracy that forsakes diversity for a mechanical subscription to the idea of secularism. Though it was agreed upon by everyone that India would be a secular state the question over what form of secularism that it would take was subject to extensive debate by the assembly. Amongst the extreme views from both the ends of spectrum it proved to be a contentious issue. As Nehru remarked, it was the problem of “creating a secular state in a religious society”. The interpretation of secularism by the Supreme Court in the present case is similar to the stand taken by few members of the assembly that the state must completely disassociate itself from religion. In what is somewhat of an exaggeration one of the members Guptanath Singh stated that “The state is above all gods. It is the god of gods. I would say that a state being a representative of the people, is god himself” (CAD-VII, p. 865). Another member Tajamul Hussain demanded that “No person shall have any visible sign, mark or name, and no person shall wear any dress whereby his religion may be recognised” (CAD-VII, p. 819). This is eerily similar to the raging debates that happened when France banned burqa. However, this form of secularism was ultimately rejected in favour of a principled engagement by the state in specific spheres of public activity as it is required. Given the socio-political difficulties such as caste and other forms of regressive social phenomenon that intertwines with deeply entrenched religious beliefs, it required a nuanced and pragmatic understanding of secularism. The rejection of suggestions to import non-establishment clause from US Constitution precisely points to this. In the words of K.M. Munshi, “We are a people with deeply religious moorings. At the same time, we have a living tradition of religious tolerance-  the result of a broad outlook of Hinduism that all religion lead to the same god… In view of this situation, our state could not possibly have a state religion, nor could a rigid line be drawn between the state and the church as in the US”.

The historical reasons could possibly be shown as a causative force for this interpretation. It is yet a parochial interpretation constricting the plausible democratic and plural reasonings that will inevitably arise in a democracy. The discussion above is to highlight the restricted imagination of the society and its relationship with the state. The state can play the role of both a reformer as well as an aid for the spiritual requirements of its people. What is required is the acceptance of the possibilities for plural reasonings that fosters the growth of democracy, the big picture.

Sabarimala Temple Entry Case: Questions Before the Court

This was first written by me for this blog.

The recent decision of the Supreme Court to refer the Sabarimala Temple entry issue to a larger constitutional bench has thrown up a lot of fascinating questions for the court to decide. In the communal rights jurisprudence that has so far been established by the Supreme Court in a series of cases such cases are put through examination on these three bases 

1. Whether a claim is a religious claim at all or not.
2. If yes, whether it forms an ‘essential’ part of the religion or not.
3. If it is found essential, whether it is in public interest or not.

Broadly in the questions formulated by the bench in the referral order are in conformity with these established tenets.

Question No.1: Exclusionary Practice & Discrimination

The basis upon which women between the age of 10 and 50 are denied entry into Sabarimala is upon an archaic and regressive conception that menstruating women are impure and that the presence of women could result in deviation from celibacy. The women in this method are essentially prevented merely because of their sex and physiological reason. In particular this practice prevents the menstruating women from entering the precincts (which presumably is the intention behind the expression ‘at any stage of time’ occurring in Rule 3(b)). Of the entire hindu population only menstruating women are prohibited here. Though it can be argued that women who are below the age of 10 and above the age of 50 are permitted it cannot be termed as a discrimination which is based only upon sex, as it does not discriminate all women. This cannot find any support within the discriminatory laws jurisprudence since only women can menstruate and therefore it is a discrimination which is based only on sex. 

Moreover, it is a well established law that it is the impact of the law which must determine the and not otherwise. The essential result of this prohibition is the exclusion of a major section of women’s population from exercising their fundamental right to practise their religion. Given the recent articulate expansion of arbitrariness doctrine under Article 14 to strike down state actions by the Supreme Court in the recently delivered judgement on Triple Talaq, the prohibition should also pass the bar under it. Arguably, as it has been explained in answer to question 5, the impugned rule 3 (b) itself is ultra vires the parent act, the prohibition cannot be said to be based on any valid law making it arbitrary and hence unconstitutional.

Question No.2: Essential Practices Test

This a highly controversial test developed by the Supreme Court to define the contours of protection offered for religious rights offered under the Constitution. First developed by the court in the Religious Endowments Case (AIR 1954 SC 282) this is a highly intrusive test which distinguishes those practices which form the ‘essential’ part of the religion and those that are extraneous to it. The distinction is to confer the constitutional privileges only to those practices which are found essential. As one would expect, the decision of what constitutes those ‘essential practices’ is decided by the court. This interventionist approach gets into the picture an externally dictated definition of what constitutes the religion rather than the how the follower of a particular religion views it to be. It replaces the internal belief system of an individual as against a institutionalised version of the same, fundamentally reversing the freedom of choice of an individual to view her religion as she deems it fit. This test cannot be sustained for various reasons, firstly the court cannot rely upon any precise doctrinal standards which it can formulate to test whether a practice is essential to the religion or not; secondly the court in order to arrive at a decision cannot but rely upon the selective display of religious texts that rival parties present before the court to support their case to decide. It cannot justify itself to be a complete inquiry into all the documents which matter for the inquiry; thirdly such religious documents and their meaning to the cause are matters of subjective interpretation with possible variance even amongst the believers of the same religious denomination; fourthly such cases counterintuitively deprives the freedom of a believer to practice the belief system the way he finds it to be fit; fifthly the test can be seen as wholly unnecessary when such practices are tested upon the anvil of other all important civil liberties recognised under the constitution and by distinguishing the obvious secular aspects of the practices. In an apparent conflict between individual liberties with the communal rights it is the former which must prevail; sixthly by denying the non-essential aspects of the religion too could possibly stand in violation of the freedom to practice religion as guaranteed by the Constitution.

However, the Supreme Court has consistently applied this test and in fact recently it has taken upon itself to even decide whether keeping a beard is an essential part of one’s religion or not (Mohammed Zubair Corporal No.781467-G Vs. Union of India & Ors. Civil Appeal No. 8643 of 2009). Though a valuable opportunity presented itself to do away with this test in the recently delivered judgement declaring Triple Talaq as unconstitutional the court failed to consider it. Given the fact that the present referral order is to a five judge bench the court must consider discarding this test altogether. From the perspective of the referral order there does not arise a necessity to inquire whether the practice of excluding such women constitutes an "essential religious practice" under Article 25. The larger questions of equality and the stigma attached to the women, as analysed in answer to previous question, would show us that such activities would fall under secular aspects which must be in conformity to other forms of individual liberties under Part III. With the changing conceptions of belief systems, when the then prevalent regressive religious practices such as Sati which had a long and established tradition were outlawed, why not a practice which excludes women based on their physiology on the grounds of ritual purity? The constitutional assembly debates on Article 25 too supports this view that the freedom of religion must not come in the way of any social reform, as specific exceptions made thereunder inform us. It must be noted that these references were made with the social reforms to salvage the social position of women in mind by the several members of the assembly.

Question No.3: A Religious Denomination

The Respondents, in this case, seeks to argue out the questions raised by this practice by claiming the followers of Sabarimala Temple as a separate religious denomination, to bring the practice under the purview of protection offered by Article 26 of the Constitution. This argument does not fund any support from the broad version of ‘Hinduism’ as has been so far defined by the Supreme Court. It is difficult to separate the followers of Sabarimala as a separate religious denomination when one goes by the definition of Hinduism offered by the Supreme Court in the case of Sastri Yagnapurushadji vs Muldas Brudardas Vaishya 1966 AIR 1119 where the court put forward a definition where it found it too broad to be put into a exactions of traditional views of the term religion:

When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.

In fact, an earlier decision of the Bombay High Court in Ratilal Panachand Gandhi vs State Of Bombay case a narrowly tailored interpretation of the term religion was offered. The relevant passage is usefully extracted here 

“… whatever binds a man to his own conscience and whatever moral and ethical principles regulate the lives of men, that alone can constitute religion as understood in the Constitution. A religion may have many secular activities, it may have secular aspects, but these secular activities and aspects do not constitute religion as understood by the Constitution. There are religions which bring under their own cloak every human activity. There is nothing which a man can do, whether in the way of clothes or food or drink, which is not considered a religious activity. But it would be absurd to suggest that a Constitution for a secular State over intended that every human and mundane activity was to be protected under the guise of religion, and it is therefore in interpreting religion in that strict sense that we roust approach Articles 25 and 26.”

However, this decision was reversed by the Supreme Court in appeal. The subsequent line of decisions where the likes of followers of Aurobindo 1983 SCR (1) 729 and Ramakrishna Mission (1995) 4 SCC 646 were challenged has followed this view consistently too. Interestingly enough in Sastri Yagnapurushadji the issue that arose for consideration was the entry of former untouchables into the places of worship made by Swaminarayan sect. Therefore the Respondents in this case cannot claim to be a separate religious denomination to be accorded the constitutional protection. It should not be forgotten that this is in addition to the arguments raised by the Petitioners that the Devaswom Board is funded from Consolidated fund of India under Article 290-A. The very fact that the institution is financed from the consolidated fund of India makes it an institution of public character for which state is acts as a custodian. Otherwise also, as a public place of worship it cannot specifically close its doors and must be subject to the rigours of Articles 14, 15 and 25.

Question No.4 &.5: Validity of Rule 3(b)

The conundrum here is that the Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 under which the impugned Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 stands framed specifically states that 

“every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein”. 

A plain reading would indicate that the rule 3 (b) which bars the women at such time during which they are not by custom and usage allowed to enter a place of public worship in such a case runs contrary to the bar laid down by its parent statute complicating the case. If the presumption drawn under Rule 3(b) that the term class as mentioned in Section 3 does not include women as it does not lay down any clear distinction to that effect failing any argument in support of its validity.

Quite apart, even if one presumes that the rule banning the entry of women does not fall foul of the parent act it must be examined whether it can satisfy other arguments made against the violation of equality rights under Articles 14, 15 and 17 of the constitution. Though a parallel with the present case can be drawn with the judgement of Bombay High Court allowing the entry of women into Haji Ali Dargah the grounds upon which the entry was banned in these two cases are subtly different. In Haji Ali case the Trust has neither pleaded nor urged before the court that there exists a custom/usage, pursuant to which women have been restrained from entering the sanctum sanctorum of the Haji Ali Dargah. Nor was there any specific order/direction which would fall under the Article 13 (3). To the contrary however, in the present case the ban directly arises out of a subordinate legislation impugned here. As established in the answers for the previous questions the rule would fall foul of Part III of the Constitution.

Transparency in Collegium

This was first published here by me.

The decision of the Supreme Court collegium to upload its resolutions with reasons is a watershed moment in the longtime campaign by various stakeholders to ensure transparency in its functioning, albeit with certain reservations. Until now the functioning of the collegium was shrouded in utmost secrecy with the news articles regarding the appointment, transfer of judges from the collegium published as obtained from ‘highly placed sources’. This method of functioning of the collegium came under heavy criticism from various sections of the society, since no significant improvement happened even after the court in the NJAC judgment accepted that the collegium system requires corrective measure for ‘improvement’ in its functioning. After the delivery of the judgment, declaring the National Judicial Appointments Commission as unconstitutional the bench invited suggestions for improving the functioning of the collegium, in pursuance to which a report came to be filed, containing recommendations on four categories Transparency, Eligibility, Secretariat, Complaints. Of the four categories, the recommendations made under the head of transparency were easily implementable by the collegium itself without having had to wait for the finalisation of the Memorandum of Procedure. But it was not until the recent furore over the resignation of Justice Patel that has resulted in this voluntary disclosure of collegium resolutions. What is yet baffling the is the consistent failure of the institution to recognise the importance of civil audit of its functioning, which cannot be sustained without adequate disclosure of information about its functioning. The recent episode of Justice Karnan has amply demonstrated that such disclosure of information at the level of High Collegium would have at least provided sufficient warning about the appointment of an ineligible candidate to the bench. The sordid saga of the Supreme Court having to resort to its contempt jurisdiction against a serving High Court judge cannot be erased easily.

Even now the decision to disclose the resolutions cannot be termed as sufficient. It is a first step in a long way that is to be covered. The resolution of the collegium to disclose information has made a subtle reservation at the end in stating that “The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system.” No information has been provided as to what does the maintaining of confidentiality would entail and what are the aspects and information in its functioning which would be reserved from disclosure. The protest lodged by a member of the collegium Justice Chelameswar specifically pointed that minutes of the meetings to discuss on appointments and transfers to maintained. Subsequently, only an informal source provided a news that ‘circulation’ method has been adopted, where files on appointments and transfers are circulated amongst the members with each of them having to provide their reasons in writing about their decision. The reasons provided in the resolutions are extremely limited for any meaningful understanding to be drawn about the appointment of a candidate. For example, each candidate’s, who are members of the lower judiciary, professional ability has been assessed by “Judgment Committee” which assess the quality of judgments delivered by them. With no basic information about the criteria upon which the committee makes the assessment and the weight that the conclusion of the judgement committee carries in the overall decision to appoint a candidate, it is inadequate in the least. It is also notable that for the appointment and transfer of judges of the High Court opinion of only three senior most members of the collegium is required to arrive at the decision and all the five members for the appointment to Supreme Court.

In spite of this being a very bold and welcome move, a reserved disclosure of information just as this would not completely satisfy the requirements of transparency. Adequate disclosure of relevant information must start from the High Court collegium stage itself when a candidate is under the zone of consideration. This would inculcate the first principles of transparency in the appointment process while paving way for civil participation as well. Arguably, the present mindset within the judicial set up against any move towards ensuring transparency is to protect the institutional integrity. Counterintuitively, such informational disclosure would also shield the decisions of collegium from unnecessary criticism paving way for enhanced institutional integrity that it strives for. This is very bold and welcome step, albeit in a long road that is yet to be covered.

Reportable Judgments and Non-Reportable Judgments.

The post first written in Law and Other Things by me.

The common law as a legal system derives its legitimacy from its reliance upon the established tradition called precedents or in other words called as the principle of stare decisis. The tradition of this system as a whole, it is thought that, derives its legitimacy from its reliance upon the precedents. This is nothing more than a result of the importance to stability and certainty that it expects from the law as a discourse. It is seen as a steadying force that steers it clear of the much-resented contradiction and towards a safer predictable course that which can be acted upon safely. This helped to a great extent for the evolution of the common law system in its past. However, if seen from a practical standpoint in the present situation, the contradictions that the voluminous precedents create are apparent. It is proving to be difficult for anyone to have a unified understanding of the widely complex jurisprudence that the flow of time would have created. The perplexity that is created in the mind of anyone who tries to apply the law is captured perfectly by Benjamin Cardozo, in the context of requirement of periodical restatement of law, in his following words

The very strength of our common law, its cautious advance and retreat a few steps at a time is turned into weakness unless bearings are taken up at frequent intervals, so that we may know the relation of the step to the movement as a whole. One line is run here; another there. We have a filigree of threads and cross-threads, radiating from the centre, and dividing one another into sections and cross-sections. We shall be caught in the tentacles of the web, unless some superintending mind imparts the secret of the structure, lifting us to a height where the unity of the circle will be visible as it lied below.

This perfectly reflects the situation that is prevalent in India, considering the fact that even the highest of court churns out hundreds of judgments every year with the volumes of court reports burgeoning with each passing year. Predictably, there have been instances of judgments with contradictory reasoning being delivered even by the Supreme Court simultaneously, creating a jurisprudential naught. In fact, they also report inconsequential orders that are peculiar to special facts of the case resulting in they too becoming a part of the ever-increasing volumes of precedent.
Common law as a system constantly strives hard to balance between the stability through the reliance on precedence on one hand and its need to cater to the changing needs of the time in the other. In the time past, in order to avoid such jurisprudential conflicts the salutary rule was to report only those judgments that establish any principle of law which can guide the decision-making process in the future to ensure a consistent approach. Even now the judgments of both Supreme Court and High Courts contains two questions

• Whether to be reported in law reports or not?
• Whether to be shown to the press or not?

Even if the judge answers both the questions in negative, the reports continue to report those judgments, making it an altogether futile exercise. Senior Advocate Fali S. Nariman notes in his book (India’s Legal System Can it be Saved? @Pg:143) that the judges themselves does not exercise their discretion judiciously “abetted by overweening judicial vanity” in deciding whether to report a judgment or not.
With increasing emphasis on the freedom of press and transparency in the judicial process, the exercise has long lost its purpose. Practically too there is nothing that can stop open access to the judgments of the courts from being accessed. With websites like India Kanoon and search engines like Google using ‘crawlers’ to periodically search for data and add to their index, the availability of the judgments is not merely confined to the law reports, unlike the earlier times. In fact, citing of unreported judgments has become a fairly routine happening in the courts by the counsels. A judgment of the Gujarat High Court furthers this by stating that merely publishing on the website would not amount to same being reported, as the word “reportable” used for judgment is in relation to it being reported in law reporter. Even otherwise, the law reports do not discriminate between a ‘reportable’ judgment and ‘non-reportable judgment’.

The Governing Statute:

Statutorily, the only act that seems to have been enacted to regulate the reporting of judgments is the Indian Law Reports Act, 1875. Section 3 of the Act states that ‘No Court shall be bound to hear cited, or Authority shall receive or treat as an authority binding on it, given only to the report of any case decided by any of the said High Courts on or after the said day, other than a report published under the authority of the Governor General in Council’. This effectively created a monopoly of legal knowledge to the official reports. However, in practice this statute remained a dead letter for unofficial reports continued to be cited and relied upon by the courts. The 14th Law Commission Report chronicles the history of law reporting in India in a lucid manner and other attempts in the form of a bill, which failed to become a law in the end, to regulate legal reports. The existence of this dead letter law was first taken note of in the 96th Law Commission Report (1984), particularly noting the anomaly created by the provision if, for example, “… a single judge, relying on section 3, refuses to look at an unofficial ruling of a division bench” creating an “unsatisfactory” position where there would be a division bench ruling “disregarded” by a single judge. This is clearly entrenched in Article 141 of the Constitution of India under which “law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India”.
The report ultimately recommended for repealing the act. Subsequently, the Commission on Review of Administrative Laws (P.C.Jain Commission) and 249th Report of Law Commission of India on ‘Obsolete Laws: Warranting Immediate Repeal (Second Interim Report)’ also recommended for its repeal. It was not until very recently through the Repealing and Amending Act, 2016 that the act stands repealed.

What to Report or What not to Report?

With the Indian Law Reports Act, 1875, the reporting conundrum has also been put to rest. However, there are lot many yet to be resolved questions that linger.

• In the interests of lessening the volume of precedents, whether it is possible by way of judicial discipline to enforce a rule to only accept reportable judgments as a binding precedent or not?
• Can the inherent conflict that would inevitably arise between the so un-reported judgments with binding provisions like Article 141 be reconciled in any manner?
• If yes, what are the parameters upon which a judge must decide and exercise his discretion on whether a judgment is to be reported or not?

Though it has become a settled principle that the open access to judgments cannot be curbed in any manner not to infringe upon other concerns such as freedom of press, it yet possible to evolve a form of restraint both from the bar and the bench to use this now obsolete way to use reportable and un-reportable judgments. In the United States of America, legal scholars come together to study all the past precedents and bring out coherent and concisely the general principles that emerge out of them for future use, called as ‘restatement of law’. This is used as a secondary source, but it relegates all the past precedents before such a restatement to the history. With no such exercise or the prospect of it happening in India, it would do good to evolve some self-made discipline to find a cure for the ‘case law diarrhoea’ that plagues our legal system.

Triple Talaq Verdict: Certain Misgivings on the Majority

The week past has been an important one for the two important verdicts delivered by the Supreme Court on Triple Talaq and the Right to Privacy has ushered in new changes in the constitutional outlook. Especially the verdict by the Supreme Court declaring the Triple Talaq to be illegal has been hailed by the members of the civil society as an important step towards the realization of equality for women. However, the 3:2 majority that delivered the verdict, precariously thin majority that it is, has given rise to more questions than what it purports to settle now. The jurisprudential questions that it has opened up will give rise to new round of debates over religious rights vis-a-vis the individual liberties. More than the outcome the basis upon which it has been arrived at poses certain intriguing questions that could give rise to new round of debates in the future. This is especially because even within the majority of three judges the authors Kurian Joseph J. and Rohinton Nariman J. differs on the fundamental reasoning to call the practice of TT invalid. Nariman J. in order to declare Triple Talaq to be illegal puts forward two fold reasoning.
1) It is 'arbitrary' in violation of right to equality under Article 14 and hence unconstitutional.
2) Triple Talaq is against the fundamental tenets of Islam and hence illegal.
In his first reasoning, Justice Nariman has restricted himself only to test the practice of Triple Talaq upon the principles of equality under Article 14, while wholly ignoring the discrimination that sexual discrimination that this practice causes by testing its validity against Article 15, which prohibits discrimination on the grounds of sex amongst other grounds. To the contrary, Justice Kurian Joseph takes a rather narrow approach by only testing the whether the practice of triple Talaq is against the fundamental principles of Islam itself without any resort to the arguments of the Petitioners upon the infringement of the affected women’s fundamental rights. While testing the Triple Talaq crucially did not feel the need to inquire into the constitutionality of Triple Talaq. He differs from the opinion of Justice Nariman in his finding that Muslim Personal Law (Shariat) Application Act, 1937 is a law that regulates Talaq, a precondition under Article 13 (1) of the constitution to invalidate anything to be unconstitutional. He has in fact agreed with minority opinion of Chief Justice Kehar in this regard. in holding that the 1937 Act is not a legislation regulating talaq, rather it merely states that "Shariat [is] applicable as the rule of decision in the matters enumerated in section 2" of 1937 Act. His reasoning for holding it illegal under the EP test are similar in nature to that of the opinion of Nariman J. Here he holds that under quran itself, whenever a talaq is granted, an opportunity for reconciliation is necessary and if the reconciliation succeeds revocation can happen. These are essential under Quran. TT closed the opportunity for such a possibility and hence it violated 'shariat'. But this narrow view to declare it illegal, without resorting to the main arguments on discrimination and arbitrariness is a precarious proposition for the enhancement of civil rights. Unless the rights that are alleged to be violated by such regressive religious practices are constitutionally protected it cannot be remedied completely. It is yet a regressive choice that personal laws can prevail over fundamental rights.
Quite independently, Justice Nariman, in consonance with Justice Joseph’s conclusion, also tests the practice by inquiring into whether it permitted within the Islamic jurisprudence or not. In other words, he tests whether it forms an essential inalienable part of the religion of Islam or not, called as ‘essential practices’ test. The test was for the first time used by the court in the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 case. The question that was involved here is the conflict between the rights to practice a religion (Article 25) as against the intervention of state on the grounds of social welfare and other secular activities. The court held that any kind of infringement of these rights, if it does not affect the essential aspects of the religion, could not be given the protection under Article 25 and 26. Through this argument the court sought to regulate those aspects of a religion that does not form the core of the subject religion.

“… in regard to article 26 is, what is the scope of clause (b) of the article which speaks of management “of its own affairs in matters of religion?" The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, whereas the line to be drawn between what are matters of religion and what are not. It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law.”

This test essentially gives the power to courts to decide upon what constitutes the essential aspects of religion, fundamentally altering freedom choice in the inner belief system of an individual to an externally dictated version of it. The reach and practice of a religion, while it cannot be put to any precise definition, the court attempts to do that by relating it powers to find what constituted the integral part of it. In the words of the court:
A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else, but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Article 25.
The attempt here is to secularize the religion with an external definition that might run contrary to the manner in which the followers of a particular religion would interpret it actually. This reverses the freedom of choice of a person to see the religion in the way that he chooses it to be as against an externally dictated conception of the belief system of the individual. This is an unnecessary exercise, which could have been avoided, to look into the validity of the practice when the rights infringed are constitutionally guaranteed rights of individuals.
This, in fact, runs quite contrary to the secular ideals that were envisaged under Article 25, which leaves things to choice sensitive to religious and legal pluralism rather than an expectation in terms of normative uniformity. Also, the definition of “religion” itself was given the widest possible amplitude in this judgment

“Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”

In fact, Nariman J. while noting this judgment states, “atheism would also form part of “religion”.” (Para 24) By both providing the powers to define what constitutes ones faith and by defining the term “religion” under the “essential practices” test the court’s power has arrogated to itself the powers to homogeneously define anything that falls under the term “religion”. In fact this has been used so much so that in a recent case the Supreme Court decided whether keeping a beard formed the essential practice under Islam or not. (Mohammed Zubair Corporal No.781467-G Vs. Union of India & Ors. Civil Appeal No. 8643 of 2009)
The subsequent line of judgments on this question both reiterated and expanded this. The fundamental issue here with this present TT judgment perpetrating this is that it chokes the critical ability of a person to self identify his own belief system by possibly alienating a social norm that does not conform to these devised tests imposed by the judiciary. There cannot be any straitjacket definition that could possibly be provided for a person’s faith by eliminating the role played by freedom of choice for an individual guaranteed under the Constitution. Counterintuitively this test curtails the very freedom the practice religion (according to one’s own conception of what religion is) that it seeks to protect under Article 25, creating an anomaly.
In the present case, Nariman J., in order to hold the TT to be unconstitutional, first he brought the 1937 act under the definition of “laws in force” Article 13 (1) in order to test TT for infringement of the Muslim Women’s rights under Article 14, as against the opinion of Kurian Joseph J. By holding that TT can be tested on the anvil of the principles ‘arbitrariness’ developed under Article 14 the case was very much made for holding it unconstitutional. There never arose any need for Nariman J. to resort to whether TT forms an essential practice of Islam. This was an invaluable opportunity to discard this test altogether from the constitutional jurisprudence.

Individual Liberty Vs. Religious Rights

The parochial understanding paid to the underlying questions upon the civil liberties of the affected women is made visible by the choice of the court to not reconsider the past precedent in State of Bombay Vs. Narassu Appa Mali, which held that personal laws cannot be subject to the restrictions of fundamental rights. It is quite anachronistic that individual rights are given precedence for the communal rights in an era where completely new forms of rights are propounded by the court. The narrow view taken by the judges, including the dissenting minority, without resorting to the main arguments on discrimination is a precarious proposition for the furtherance of civil rights jurisprudence. Unless the rights that are alleged to be violated by such regressive religious practices are constitutionally protected it cannot be remedied completely. It is yet a regressive choice that personal laws can prevail over fundamental rights. This is a classic example of misplaced priorities of the court in balancing individual liberties against the communal rights. More than the overall the conclusion, the failure of the court to recognize the inequality in the prevalent social structure against the women would ring against the liberal conscience of the court.

Formal Vs. Substantive Equality

The opinion rendered by Justice Nariman is celebrated by scholars for furthering the jurisprudence of equality and the principles of ‘arbitrariness’ under Article 14 of the Constitution. This is missing the wood for the trees. The verdicts failure to even recognize that there has been discrimination based on sex, in violation of Article 15, has misdirected the inequality analysis. It is only after taking into consideration the substantive effects of sex of a person plays a role in directing discrimination that one can recognize the mischief that is sought to be remedied. The superficial assessment of all the three opinions has failed to look at the root cause that is gender discrimination only accords a formal equality that has not remedied the issue. This is only a formal equality giving a short shrift to the unequal bargaining power of women in a family structure. It is necessary that the discussion must redirect its attention to the social constructs of discrimination and must analyze it in its own terms. The deeper questions over economic dependence of women, artificial construct of gender based social hierarchy and the resultant discrimination cannot be answered without it. It must deconstruct the social, economic and political dimensions of the gender based discrimination that are a direct result of a conservative understanding of women’s position in the society to achieve substantive equality by travelling the last mile.
A mechanical look at the majority opinion might show it to be a progressive verdict in terms of its outcome; however, it is yet another opportunity missed by the judiciary to protect a major vulnerable section of the society from discrimination and abuse. Jurisprudentially there is a great difference in the two opinions of the majority putting things at a naught. It would be interesting to see the further development of jurisprudence upon this pulpit in the future and how these differences within the majority are going to play out further.

Naz Foundation Judgement and Right to Privacy: A Revisit

Now that the much-awaited judgement of Supreme Court judgement on Right to Privacy is upon us, many interesting discussions are happening all around. On a jurisprudential level the judgement will be path breaking and will initiate further discussion on this subject, for its impact is widespread. More than putting an end to the problems involved this decision would initiate fresh grounds for development of law in this area. Some past decisions might have to be revisited based on the outcome here. One such case is the regressive jurisprudence established by the Supreme Court in Suresh Kumar Koushal & Anr. Vs. Naz Foundation and Ors. (2014) 1 SCC 1. Apart from other jurisprudential mistakes, that the judgement has made it has relied upon two judgements in particular to discredit the arguments on right to privacy made by the LGBT persons in the case. While the High Court 160 (2009) DLT 277 found Section 377 to be in violation of the Right to Privacy under Article 21, the Supreme Court simply rejected such arguments relying upon the judgement by the Court in Kharak Singh v. State of UP AIR 1963 SC 1295 and Gobind v. State of MP  (1975) 2 SCC 148. The overt reliance by the court in these two judgements is both to delineate the state interference on one’s privacy rights and to show that Section 377 challenged in the case falls under the reasonable restrictions on the fundamental rights guaranteed under the constitution. As far as the correctness of these two judgements are concerned it can be seen that these cases are no more a good law, since they were effectively been disregarded in a line of subsequent cases. Especially in Kharak Singh the ratio was based upon the premise that the fundamental rights were watertight compartments, which cannot be read together and cannot have spill over effects on each other –a pre Maneka Gandhi era with A.K.Gopalan understanding of fundamental rights. However, this understanding has been changed both in Maneka Gandhi and R.C.Cooper judgements of the court. Moreover, a seriatim of subsequent cases has identified this and has been noted by the court even very recently in Mohd Arif v. Supreme Court of India (2014) 9 SCC 737

“25. In Kharak Singh v. State of U.P. [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] , Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] reading of fundamental rights in watertight compartments was reiterated by the majority. However, they went one step further to say that “personal liberty” in Art. 21 takes in and comprises the residue after all the rights granted by Art. 19. Justices Subba Rao and Shah disagreed. They held:
“The fundamental right of life and personal liberty have many attributes and some of them are found in Art. 19. If a person's fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Art. 19(2) so far as the attributes covered by Art. 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Art. 19(2) of the Constitution. But in this case no such defence is available, as admittedly there is no such law. So the petitioner can legitimately plead that his fundamental rights both under Art. 19(1)(d) and Art. 21 are infringed by the State.” (at pages 356-357)
26. The minority judgment of Subba Rao and Shah, JJ. eventually became law in Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India [Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248] , where the 11-Judge Bench finally discarded Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] view and held that various fundamental rights contained in different articles are not mutually exclusive: (SCC p. 289, para 53)
“53. We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with Article 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Article 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression “law” means a law which is within the competence of the Legislature, and does not impair the guarantee of the rights in Part III. We are unable, therefore, to agree that Articles 19(1)(f) and 31(2) are mutually exclusive.”
27. The stage was now set for the judgment in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1 SCC 248] . Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See at SCR pp. 646-48 : SCC pp. 393-95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-74 & 687 : SCC pp. 279-84 & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J]

In the much-awaited judgement on the right to privacy, if the court finds that the Right to Privacy is a fundamental right recognised under the constitution they must necessarily overrule these two judgements, which has been relied upon in Naz foundation, explicitly to arrive at such a conclusion. This would erode the fundamental premise upon which the challenge to Section 377 was made by the LGBT persons was rejected by the court. Also, while arguments were made before the 5 judge bench in the Right to Privacy case it was strenuously submitted the petitioners that the court must only identify that the Right to Privacy is a fundamental right and is a part of the Constitution and it must not venture into defining the contours of it but to leave it to be decided on case to case basis. In Naz Foundation, the state interference in the matters of personal choice and sexual orientation may have to be revisited in view of the concrete understanding that would emerge through this judgement on privacy rights. Specifically in the context of privacy rights and individual autonomy over sexual orientation would be put to question and there would be a necessity to delineate the degree of state interference in such matters. It would provide a wonderful opportunity for the court to revisit one of the most regressive judgements ever has been delivered by the court. The overarching impact of the judgment on the constitutional status of right to privacy can be keenly felt when we see the wide ranging repercussions, either positive or negative, that it could create in the established jurisprudence. It is the fondest hope that the Supreme Court would not succumb to the temptations of arming the state by failing to recognise such an inalienable right.

ADM Jabalpur Vs Shivakant Shukla: Supreme Court and its Jurisprudence of Redemption

If there is one case which marked the downfall of Indian judiciary no doubt that it will be Habeas Corpus case (ADM Jabalpur Vs. Shivakant Shukla (1976) 2 SCC 521). The case was decided by the court in a highly charged political situation and it was clearly visible for everyone that the decision was made the court not on merits but on external political considerations. The tragedy also gifted us with the courageous dissent of Hon'ble Justice H.R.Khanna who went down the annals of history and the saviour of the ideals for which the Indian democracy stood for. But the mortal blow that the decision and its subsequent repercussions dealt to the higher judiciary took a long time to recover. During the hearing of the case when Justice Khanna specifically asked whether there would be any remedy if a police officer, because of personal enimity, took into detention a law abiding citizen and even put an end to his life. The attorney general unequivocally stated that, 'consistently with my argument there will be no judicial remedy in such cases as long as the emergency lasts’. It is a treacherous path that the government went into and which the Supreme Court gave into. The decision altered the very nature and course that the judiciary was to take in its days to come. The blatant supersession of Justice Khanna in his appointment as the Chief Justice of India was a direct result of his dissent from the 4 other judges forming the majority which held that even fundamental rights are suspended when emergency is proclaimed. The then judicial reclusiveness gave way to newly found activism which elevated it to unknown heights. The judiciary cloistered itself and arrogated to it all powers that was possibly within its reach under the Constitution including its own process of appointments and transfers. Entering into a new era, its subsequent interpretive ventures expanded both reach and scope of civil liberties under the Constitution.

The new jurisprudence that which was heralded by the Supreme Court post the Habeas Corpus case ushered in an positive morality to the constituional provisions. But it is yet a surprising fact that the judgement, which is seen as a gruesome manifestation of state power, has dubious validity without being explicitly overruled. There arose no opportunity for the Apex Court to revisit this byproduct of the dark hours of emergency. In an era where far reaching rights, which were never intended or contemplated by the framers of the Constitution were provided by the judiciary purely through its powers of interpretation, it baffles one's reasoning power to think that this still forms a part of its history. In contrast with the judiciary that we know of now, this judgement yet remains a blemish in its record. To put this in perspective a passage from the majority judgement written by J. Beg will be instructive

“we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well-housed, well-fed, and well-treated, is almost maternal. Even parents have to take appropriate prevent action against those children who may threaten to burn down the house they live in.”

The subsequent jurisprudence expounded by the Supreme Court in a series of landmark judgements changed the fundamental approach towards the interpretation of constitutional rights and the remedies. Therefore it is important for us to see what is the scope and reach of the jurisprudential conclusion arrived at by the court in this infamous judgement. Apart from its conclusion on the suspension of fundamental rights during emergency it also raised several contentious issues upon the substantive and procedural justice and it's implications.

The issue that arose in ADM Jabalpur is whether constitutional remedies under Article 226 and Article 32 of the Constitution can be availed by a party whose fundamental rights are infringed during emergency or not. The issue arose when, after the declaration of emergency by the President, many leaders of the opposition were arrested by the government on one pretext or the other all over the country. Within two days of declaring the emergency the President made another declaration whereby no person could move the courts for enforcement of articles 14, 21 & 22. The detainees initiated Habeas Corpus petition before the high courts challenging their detention. Though the judiciary was not able to examine the order of detention on any illegality under the maintenance of internal security act, 1971, several High Courts granted the relief to such Petitoners by scrutinising the validity of such detention orders on the pedestal of fundamental rights conferred under Article 14, 21 and 22, in spite of the proclamation of emergency under Article 359. The Supreme Court in the challenge to such orders concluded that

"Article 359 prohibited enforcement of articles 14, 21 & 22 and it also barred anyone from approaching the High Court to question his detention on any ground whatsoever. Liberty is the gift of law and can be forfeited by law. There is a complete bar to approach the court for any violation of articles 14, 21 and 22 once a proclamation under Article 359 is made. No person can question his detention for any reason whatsoever or on the ground that it is illegal and mala fide."

In a textualist reading of the provisions the majority concluded the above by ignoring the fact that one does always have to read the provisions of the Constitution with strict fidelity to its text, or in a manner faithful to the intent of its framers. The parochial understanding of Article 21 and its substantive reach was directly carried over from the A.K.Gopalan (AIR 1950 SC 27) where the court rejected the arguments to import the due process clause from the American Constitution. The entailing effect was that even when a procedure established by law passed by the legislature offends Part III the validity of such a law or the procedure cannot be challenged. The court also concluded the fundamental rights to be mutually exclusive and are water tight compartments which cannot have spilling effects on the other rights conferred under Part III of the Constitution. The substantive effect of such a conclusion is that the rights that were not explicitly recognized under the Part III cannot be enforced. The dissent by J. Khanna in refusal tellingly stated that 

“The right not to be deprived of one's life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights  I did not have the effect of exterminating the independent identity of such a right and of making Article 21 to be the sole repository of that right.” (para 531)

This conclusion of the court over the ambit and scope of Article 21 that is seen above was substantially overruled by the court the celebrated case of Maneka Gandhi Vs. Union of India (1978) 1 SCC 248. It is of interest to know that (ironically) three of the judges (Beg, Chandrachud, and Bhagwati) in the bench which decided the Maneka Gandhi were also a part of the bench which decided the Habeas Corpus case. It substantially imported the due process clause, which was consciously eschewed by the framers of the Constitution. The jurisprudence that was spearheaded by the Supreme Court in the subsequent decades expanded the ambit of the ‘due process’ to include 'substantial’ due process. In fact, it is the author of the Habeas Corpus judgement J. Bhagwati who opened up a whole new arena of rights under Article 21 by recognizing the epistolary jurisprudence for the first in the history heralding the new era of Public Interest Litigation (PIL). If one looks at the human participants behind these judgements, one cannot help but think that the ground breaking jurisprudence heralded by the Apex Court is a jurisprudence of redemption for what it failed to do during the hours of want for this country. While the external pressure made these decision makers to follow this path of regression, the subsequent decades, post emergency, provided valuable lessons for the judiciary to be cautious of the executive excesses affecting the Independence of judiciary and its ability to curtail the freedom. The judiciary saw this as an opportunity to redeem its role as a protector of civil liberties enshrined under the Constitution. Undoubtedly the subsequent developments be it the expansion of Article 21 to include civil rights of the new era or the expansion of its powers of judicial  review is towards this goal. It is necessary for the court to not forget such lessons in the present when questions as to the very existence of rights as basic as privacy are put to question by the state before the court.

P.S: In the arguments before the 9 Judge bench, constituted for deciding on the fundamental right to privacy, Advocate Mr.Gopal Shankaranarayanan made an argument (albeit as a passing remark) that this judgement can be overruled by the present bench. The legal effect of the judgement, apart from the implied overruling by subsequent judgements of the court, the 44th constitutional amendment nullified it. Making it irrelevant as far as the legal effect is concerned. However, it yet remains as a blot in the judicial reasoning and deserves to be overruled by the present bench of 9 judges.

Right to Privacy: Summary of Arguments Made by the Petitioners on Day 2 of the Hearings

Day 2: 

The bench comprised of 9 judges sitting from left to right in the following order

• Sanjay Kishan Kaul J.
• A.M. Sapre J.
• R.K. Agarwal J.
• Jasti Chelameshwar J.
• J.S. Kehar J.
• S.A. Bobde J.
• R.F. Nariman J.
• Dhananjay Chandrachud J.
• Navin Sinha J.

10:30 AM: Arguments were continued by Sr. Advocate Mr.Arvind Datar from where he let off the previous day

• The three types of privacy that an individual can command are as follows
• Physical privacy: Protection against tangible and intangible invasion of private space.
• Informational privacy: An individual's control over the dissemination of his private information.
• Decisional privacy: Protection of an individual's autonomy over fundamental personal choices.
• Interrupted by Dhananjay Chandrachud J. (DyC) with the following question 

DyC: For us to claim the protection from invasion of privacy from the state is one thing. But for a horizontal right like Right to Privacy can the same be enforced against private entities?

Datar: The remedy in that case is of damages.

DyC: But, the state has equal obligation for protection even against violations by a private player. Say for example its role might by to frame appropriate rules and regulations to prevent such violations from happening.

Datar: Yes! I completely agree. The state is obligated to play its role.

DyC: But the obligation and the entailing burden on the state may not be equal in all such horizontal rights.

11:00 AM: Mr.Datar rested his arguments and the stage was taken by Sr.Adv. Mr.Anand Grover

• Maneka Gandhi has overrules Kharak Singh, so there is no need to get into that discussion.
• The UOI has made a primary argument that the Right to Privacy is not present within the constitution in any form. If at all it is granted as a common law right. I say that English Common Law does not recognise the right. It is imported by the American Jurisprudence.
• It is baffling that we are still debating upon the very existence of a right as essential as this after the passage of such a long time.
• Such form of human rights is a part of the obligation that India has under the international instruments that it has signed. (Cites Article 17 of International Covenant on Civil and Political Rights).
• Sr. Adv. Mr.Gopal Subramanium (GS) interrupts: The recent Manipur judgement (Extra Judl. Exec. Victims Families Association & Anr. Vs. Union of India & Ors. W.P. Crl. No.129/2012) delivered by M.B. Lokur J. discusses this.
• It is the obligation of the state to implement and comply with such international instruments if it is not against any of the domestic law. It is in pursuance of such obligation that several acts like Protection of Human Rights Act, 1993 were enacted. In fact, Section 12 (f) of the Act obligates the National Human Rights Commission to study treaties and other international instruments on human rights to make suitable recommendations for their effective implementation. Interrupted by Rohinton F. Nariman J. (RFN)

RFN: The court can issue a mandamus to the government to enforce the commitments of the nation under such international instruments.

GS: Yes! It has happened in the past.

• If there is no domestic law and there is international law then the international law will prevail. This has been enunciated in the Vishaka Judgement by the Supreme Court itself.

RFN: Then we can say that the 8 judge bench in the M.P.Sharma case is outrightly wrong since it was delivered in the face of international instruments such as Universal Declaration of Human Rights (UDHR).

Grover: Also it does not have the ratio decidendi. Privacy was never an issue before that bench.

• Dignity is always associated with privacy. Interrupted by DyC: "Then the NALSA judgement would become vulnerable". (Mr.Grover enters into an animated discussion about the NALSA judgement by tracing out the dignity and privacy aspects of the issues involved in that case).
• The present bench should not precisely define the Right to Privacy in its totality. It may trace its contours to provide a general idea and leave the rest to be decided on case to case basis. 
• Cites Govind Vs. State of Madhya Pradesh 1975 SCR (3) 946. DyC: This judgement by Mathews J. is a rather narrow conception of privacy. The issue was not entertained in its full context. Only now the issue is entertained in full fledged manner.
• Tests that can be used differs from the Article under which the issue of privacy arises. It can either arise in Art.19 or 21. So the issue must be adjudicated and tested in the appropriate context. Several of such tests can be 
• Compelling state interest test.
• Proportionality test.
• Least Restrictive test.
• Legitimacy test.
• Privacy would also entail the right to identity and right to remain anonymous. DyC cites several practical examples where the issues of privacy and state necessity are encountered.

In applying for a passport for an adopted child can the authority compel to disclose the details of biological parents. Also in case of a single mother can there be any compulsion to disclose the identity of the father? To what extent such rights can be claimed, if at all there is any?

Suppose the government maintains a register about all people who has committed a crime. The violation of the Right to Privacy is not merely of the maintaining the register. There will be one if such an information is used to profile individuals and their propensity to commit crime. 

Ultimately, the important issue is that the identity should not be used to stigmatise the person. (Cites NALSA judgement.)

• Cites Right to Privacy and bodily integrity of a mentally unstable woman and a victim of rape to give birth to a child. (Suchita Srivastava Vs. Chandigarh Administration)
• There is a right to privacy. But it should not be defined now. It should be on case to case basis. It should be indicative (Sr. Adv. GS whispering in Grover's ears: Let us not go into the merits of Aadhaar case now. Grover nods in agreement).
• The Right to Privacy is all pervading, the test for which will depend on the right in which it manifests itself.

1:50 PM: Arguments rested by Mr.Anand Grover and the stage has been taken by Sr. Adv. Sajjan Poovayya (SjP).

• Cites United States Vs. Jones (2012). DyC: Please tell us about consent, informed consent and its entailing effects.

DyC: If any surveillance is a transgression of Right to Privacy, then what about the legitimate requirements of the state such as a person being put under surveillance under alleges terrorist activities?

SjP: Then it must be done under the procedure established by law.

Chelameshwar: What is the objection on mere collection of data?

SjP: Given the advancement in technology the collection of data and its processing happens near simultaneously due to artificial intelligence. The possibilities of abuse is large. Moreover, in case of a private player I consent for such a collection on a case to case basis on a private contract to avail its services. That is not the case with the state.

• Secrecy is not a prerequisite for protection under Right to Privacy. Even the information in public domain is entitled to such a protection.
• The state is not merely obligated to protect the physical being of its citizens, in modern times it is to protect their digital identity as well.
• Cites the various instances where the legislature has already acknowledged the existence of Right to Privacy.
• Section 5(2) of Telegraph Act.
• Section 8 (j) of RTI Act.

RFN: What happened to the privacy bill?

3:30 PM: Arguments rested by Mr.Poovayya. The stage was taken by Ms.Meenakshi Arora

• Cites Wolf Vs. Colorado.
• Rights there were already there before the Constitution came into being were inhered into the Constitution. Just because it is not stated there does not mean that it does not exist. A similar argument was taken by H.R. Khanna J. in A.D.M.Jabalpur case (Habaeus Corpus Case).
• Cites Row Vs. Wade.

04:00 PM: Adjourned. Hearing of Respondents arguments to continue on Tuesday.

Book Review: Gandhi Before India

The history of mankind, if one skims through, is merely a repetitive record of the violence that one perpetrates upon the other. Each era is punctuated with the leaders who defined the course of such events. The garb of nationalism and other paraphernalia associated with it are merely the tools in the hands of these leaders to gather the masses behind them. It was not until the arrival of Gandhi that morality of neither those tools nor the end that is sought to be achieved mattered much. His methods questioned the very basis upon which power was exercised by one over the other. The history of this man is the history of the mankind and its self-discovery of its moral compass. The invention by Gandhi of his methods did not happen over a single day or over a single incident. It was a gradual process of evolution and a self-discovery, a most important part of which happened in the continent of Africa. Mind that this transformation is from being an abject failure as a lawyer in his homeland to being an undisputed leader of the civil resistance is the story that was carried out of Africa. The man that we know as Gandhi in India was discovered by Gandhi himself only in this sojourn. But this history is a relatively immaterial happening for most of his biographers were blithe loathsome to dedicate time and space to this part of his story. The narrative importance of this part of his life can be better understood when we see that Gandhi himself sees South Africa as the place where he discovered the means to achieve the ultimate end of emancipation for his homeland from the colonial rule. It is a startling journey of a shy man from Kathiawar who cannot even deliver a speech on his own without any assistance to an undisputed leader of Indians. The author himself recognises the narrative importance of this part of the story in the early chapters of this book. The success of this book, more than anything else, depends largely upon the narrative fidelity of the author in taking us through the historical forces of causation that made the man that we saw as 'Mahatma' in India.

Of the Self-Discovery and the Horizons Unraveled

There are not many figures in the world history who has been subject to as much analysis as Gandhi has been. How much ever revered, he was still not without his own eccentricities and blemishes. In fact, he had an unheard of audacity to criticise certain such blemishes on his own in his autobiography. But a third man's account of such how he developed such nuances, which made the man that we know of, is a void that the author seeks to fill in, especially of the time that he spent in Africa. It was an evolutionary process in which his ideals were shaped by his interactions and experiences in one of the most racially prejudiced governments of the world. Of all, his relationship with the native Africans best demonstrates this. He was not free from the prevailing prejudice against the native Africans. This was even overtly visible in the actions of the Gandhi. While he was arguing staunchly for the rights of Indians in Africa and against the racially motivated laws he still abided by the prevailing racial hierarchy. Whites at the top and blacks at the bottom with the Indians floating somewhere in between. Rule be pleaded for equal treatment of Indians, he tried to persuade the authorities by arguing that let not the Indians be treated in the way Africans (Kaffirs) are treated. His petitions to the government to relax some rules specifically targeting the Indians shows a certain degree of apologetic approach that he had in his early days towards the imperial rule. Though justified as an incrementalist approach that he wanted to have in a political struggle, this reminds us again of the Gandhi that we are yet to see. However, what baffles one's mind is when such prejudices, if seen in today's terms, clearly comes in conflict with his ability as a leader. The entry into Transvaal in protest against the racial laws and the demands for equality was only sought for 'educated' and 'cultured' Indians.The struggle that he spearheaded is demonstrative of the very conception of civil liberties that we happen to have today. The recurring use of the qualifiers like 'cultured' and 'educated' to proclaim civil rights just shows that the concept of equality as we see it today was not even thought of then. Even Gandhi himself and his ideas were sequestered to this, confining his activism, at least until then, within these parochial notions of equality. It is baffling by today's standards how he was able to mobilise people cutting across populace regardless of the background. In fact, in the last stages of his struggle for political rights in Africa drew a majority of its support from the lower strata of the Indian populace in Africa, like the indentured labourers. It all, however, ended up as an educative experience for him shaping both him and his ideology with which he landed in India. Rather than dictating outlook towards the world, these encounters along with the extended friendship that he had with people from other races enriched his ideas and provided necessary inputs to forge what he ultimately called as 'Satyagraha'. Either consciously or unconsciously he expanded the horizon of his political views from being a conservative Gujarati baniya to a political leader with worldly views in this two decades worth journey.

Of Gandhi- The Private Man 

All through the book one can see two distinctive personalities of the man. Gandhi- The political leader and Gandhi- The unsuitable family man. Though it has always been my principle not to criticise someone on their actions in personal relationships, I must make a special exception for the likes of Gandhi. I deduce reason thus. I find that all his political proclamations were backed by a strong sense of personal integrity in doing what he says and ask others to do. His political reasoning was entirely built upon his moral construct of self and the discipline in leading a principled life.  It is for this very reason he was able to connect with the masses, unlike any other leader until then. He eased himself into the blurry lines that which political leaders like him unconsciously drew between them and the people that they seek to lead by only preaching what he did. There existed no dividing line between his public and private life when he expected even the members of his family to participate in what he did politically. He was unrelenting in his acts of self-discipline. However, this virtuosity of the man cost him much in his interpersonal relationships. Perhaps he himself realised this, evident from his communications to Kasturba (his wife) where at places he indicates the importance of public work in his life and his inability to dedicate time for the family as much as she would want him to. For a person as important as him it is understandable, however, the real problem arose when he imposed his discipline upon other members around him and it consisted of people outside his family as well. Apart from the relatively difficult relationship that he had with Kasturba the constant struggle that he had with his sons would best demonstrate this. Every single letter that he wrote to his sons reeks of unwanted authoritarian language. He expected them to follow everything he wanted them to till the end. He never seems to have left any legitimate choices for them to make or to discover things for themselves. It would sound paradoxical if one were to see that Gandhi himself was made to be the man that he is because he had the freedom to exercise such choices. If one were to see his history it is the very freedom that he denied his sons which provided him with the means to see the world in his own terms. Had his father been alive, he sure would not have allowed him to travel to London to become a barrister. It is in London that he was exposed to the experiences which came in handy in his ascension to the peak. With his sons, to the contrary, he curtailed any and every means for them explore their abilities in their own terms. His letters are always filled with his exasperation on his unmet expectations, which went even to the extent of asking them to control their carnal instincts. Though a successful leader, he is an abject failure as a father.
His relationship with his wife if seen through the lens of modern standards of women's rights and emancipation Gandhi is an unsurprising failure. All through it is an uneasy civil relationship that they established amongst themselves. The physical attraction played role in their young age (regardless of his later day self-criticism on his inability to be at his father's side on his death due to his carnal desires) but the later day compulsions and Gandhi's exposure to the outside world changed the dynamics of the relationship between them. With his increasing proclivity towards public work his expectations from his wife changed. Being an uneducated and conservative woman, Kasturba at the best could do what he asked her to without any consideration her own sense of self and independent choices. All through, her part in the story of Gandhi is merely a devoted wife standing with her husband's choices, an outcrop of conservative Indian ideals thrust upon a woman. Her sojourn into the gaol in Africa and other participation seems purely out of this devotion, not out of her own intellectual exercise. Gandhi's unilateral decision to practice celibacy is one such decision. Though Kasturba accepted unequivocally it was out of the fact that she did not want to bear any more children. All this is a result his inability to see past his perceptions about the individual that Kasturba was. He grew comfortable in a mechanical role of a 'provider' for his family. One of Gandhi's close friend Millie Polak, who lived in the same house as Gandhis along with her husband, conversation with Gandhi explains this clearly. After being with Gandhi family for a while she told Gandhi that 'the East has made the woman the subject of man, she seems to possess no individual life'. Gandhi characteristically replied that 'The East has given her a position of worship' and went on to quote the story of Satyavan-Savitri. This deification is dangerous reasoning that has been cast upon numerous social institutions of oppression to legitimise it and Gandhi continued to use this reasoning even in the many other beliefs of his own to justify his claims.
Even more unique is the friendship that he cultivated around him. As a person, from what we can see through the history, he might even come across as incorrigible and impracticable due to his eccentricities. But if we want to understand what Gandhi was it is those eccentric reasonings that he professed in his personal life which will give us a peek into it. In fact, his friendship to a great extent grew because of people getting attracted to these eccentricities of his. There was a presence of an overwhelming attraction that transcended such nuances that made the man. Gandhi reciprocally was made to be what he was only with their influence both intellectually and in kind. His friends willingly put themselves in the ways of hardship since they unconditionally believed in what Gandhi did. The strongly knit circle of friends that he fostered in Africa cannot be treated in a conventional sense. They got close to him out of sheer attraction for the principles that he stood for, in that way they were early 'followers' of Gandhian principles.  The very experiment of the Tolstoy farm is an example of how people got influenced by him put themselves to the hardship by willingly abandoning the creature comforts that the modern life offered them.
The most notable of his friends during his time in South Africa was Henry Polak, Hermann Kallenbach and Paranjivan Mehta. Both Polak and Kallenbach attached themselves to Gandhi out of sheer attraction to the principles that he espoused and in fact dedicated their life to those principles. They played a dominant role in Gandhi's political ascension in Africa. Paranjivan Mehta saw Gandhi as the saviour who would emancipate India from its colonial rule. He predicted a greater role that would be played by him in the forthcoming political struggle and wanted him to return to India at the earliest possible. In fact, it was him, who called Gandhi a 'Mahatma' for the first time, not Tagore. He went to great extent to help Gandhi in all mean he could, especially in monetary terms.

Of the Man of Eccentricities

The relationship that Gandhi fostered with people around him had a peculiar flavour to it. Just as it is seen with the relationship that he established with the members of his family he might come across as an eccentric individual who is difficult to deal with in a conventional sense. His beliefs and notions were archaic and are not always grounded in science and logic. Digest this statement of Gandhi, about modern medical facilities, if possible: "modern hospitals perpetuate vice, misery and degradation; had there been no hospitals for cure of venereal diseases, there would be less sexual vice amongst us". I can only imagine the negative impact that a thought which is even remotely influenced by this. He was unnecessarily obsessed with the sexual choices of individuals around him. In many communications that he made with his sons and cousins, he chose to enter into a diatribe on celibacy.

Of Gandhi- The Idea

We often tend to forget that the journey is as important as the destination. Mankind as a whole reached a place where it had to do a moral reevaluation of the progress that it made up until then. It required the directions to lead it somewhere where it can create a just word. It came in the form of Gandhi. Just as Victor Hugo said "You can resist an invading army; you cannot resist an idea whose time has come". Gandhi was an idea whose time had come. He questioned the morality of things that our world took for granted until then. More than the man himself, it is his principles that has endured the passage of time and it is to stay relevant for the future too. We are living in a period where the sense of brotherhood amongst fellow humans has been overtaken by parochial considerations of identity. It is for us to rediscover for our own sake the man that was 'Gandhi'.
A picture is sometimes not a product of an painter's mind. It there present somewhere, to be discovered by the painter. The broad strokes of his brush brings it to life for us to see. Ramchandra Guha has painted this for us to see something as important this. By providing a deep insight into the life the man Ramchandra Guha has done a great service for us all to read. This book is a must read for all who wants to know the man that was Gandhi.

Of the Unkept Promises in the Language Policy of India

Formation of a democratic polity is a complex process of negotiations of various interested groups. They bargain amongst themselves over various factors that would form a part of the overall structure of the society. This could very well be a straightforward process in places where no questions are raised over issues of identity and its constituent factors such as religion, language, culture etc. The answers to such questions are taken for granted during the formative stages of a nation. In this sense, we can clearly see India as an anachronism. It belies all traditional notions of national identity and those that hitherto were considered as formative requirements of a nation. It does not possess either a single religion or a culture that anybody can call as a focal point that brings the unity. However, the yet to be resolved issues of language threaten this unique character. Though, for a long time after the anti-hindi agitations of 60’s this has been a simmering issue, it has come to the forefront recently sparking the debates over the language policy of the union government. Uniquely, voices of protests are being raised from new groups apart from the traditional bastion of Tamil Nadu, giving much more credence to the long-standing demands of the supporters of regional languages. The non-hindi speakers’ non-acceptance of the present language policy is well known. However, what still baffles one’s mind is what could have led to the present situation of discontent? Were the drafters of the constitution so oblivious to even the legitimate demands of a major section of people? 
With the passage of time we have a propensity to disassociate ourselves from taking a critical view of things that we revere. The Constituent Assembly is one of such things where we tend to take a puritanical stance and prefer to look at it as an unblemished record taking it to a metaphysical status. The founding ‘fathers’ were seen as a bunch of angels who convened together with a solitary aim of forging the destiny of the millions. We tend to forget that they are not without their own set of nuanced problems and eccentricities. Each carried with them a distinct vision of the future that the country was to step into and the path that would lead towards that envisioned destiny. The discussions held by the assembly upon the language question of the union displayed best how the conflict of reasonings between members translated into a less than an ideal solution to the problem that was posed. Granted that it is not easy to arrive at an acceptable solution when the assembly itself represented an eclectic mix of people from different backgrounds and different set of ideologies, however, it certainly does not absolve them of the shortcomings or rather deliberate compromises that took us here.
The discussions upon this question begun with a fundamental and unassailable assumption amongst many of the members that there must be a single official language for the union and it must be Hindi. The people who formed this group consisted of the members from Hindi speaking constituencies. None from this group was in the mood to concede any ground to make English as a link language, as suggested by other members who hailed from other non-hindi speaking states. The prejudice was so great that when discussions on the language of the assembly itself was held one of the members Seth Govind Das said “I want to tell my brethren from Madras that if after twenty-five years of efforts on the part of Mahatma Gandhi they have not been able to understand Hindustani, the blame lies at their door. It is beyond our patience that because some of our brethren from Madras do not understand Hindustani, English should reign supreme in a Constituent Assembly... assembled to frame a Constitution for a free India”. In the course there was a flurry of suggested amendments to the draft, of which several were so extreme as to even refuse the transitory period for the usage of Hindi to come into force, nor did they feel any necessity to accord a constitutional status to the regional languages as suggested by the Munshi-Ayyangar formula. An assembly of men, who, until then, made everything based upon consensus, broke into an acrimonious dispute over the issue that threatened the very purpose for which they set forth with. It took the united efforts of other moderate members (as Granville Austin calls the members of the assembly who believed that English must perform the role of a link language and must be replaced by Hindi slowly and cautiously) to stall the efforts towards hoisting a linguistic hegemony by the extremist members of the assembly. More than what the record indicates the solution that was arrived was due to the intense background negotiations held amongst the party members, since it was the earnest belief of the members that all outcomes must be based upon mutual consensus. However, it would be funny to know that the bitterness that the language question caused would have derailed this unwritten rule of the assembly. When a voting was taken to decide upon the official numerals between Hindi and international numerals it was passed in favour of hindi numerals by a slender margin of one vote. Sensing that such an important question cannot be imposed upon others on wafer thin majority Nehru pleaded against it. It was at this stage the Munshi-Ayyangar formula was proposed as a form of compromise. This formula eschewed the very concept of a national language and in its place proposed to have official language as against the wishes of pro-hindi agitators within the assembly. Apart from this it also suggested for an interim measure to use English as a language of the union in addition to Hindi for a period of 15 years, which can be further extended in case of need amongst other measures. It was an overwhelming concessions from both sides of the camp that resulted in Part XVII of the Constitution that deals with the official language.
All through one can sense an overwhelming sense of urgency with which the question was dealt with by the assembly. There was a lingering anxiety to ensure that the language issue does not topple the larger project of constitution that was standing in front of the assembly. It would not be an exaggeration to state that this anxiety has resulted in a less than optimal solution for the issue, for it curtailed the legitimate aspirations of large sections of the populace to be recognised as a part of the democratic polity. It is plainly visible that the assembly in order to deal with its inability to resolve the issue merely provided for a temporary compromise to carry forward its functions without hindrance. They merely postponed the righteous answer due to internal political compulsions and it was a sincere belief on the part of its members that the issue would be resolved in the future in a composite manner carrying forward the ethos of inclusion and equality.
However, the future is yet to resolve for itself the issue. To the contrary there are only attempts to impose Hindi upon other non-native speakers at the cost of their own language and the resultant discrimination is a reneged promise upon which this union still stands. The recent recommendations by the Committee of Parliament on Official Language is an example of dastardly incursions on the freedom of choice to speak and act by a non-hindi speaker. The very fact that such recommendations were assented to by the President without any further public discussion demonstrates this discrimination. In fact few of the recommendations goes against the express bar under Article 343 (3) of the Constitution which requires the commission to take into consideration the just claims and the interests of persons belonging to the non-Hindi speaking areas in regard to the public services. We may still be the only country where there exists no official translation of the Constitution itself in the regional languages. More than being inclusive the vision of a nation with a single language as its identity yet continues to be a festering wound for the majority of regional language speakers. In fact the monist vision of the nation, in terms of language, has been internalised by the Hindi speaking populace of the country that most are not able to think in any other terms.
A constitution cannot merely be relegated to a formal documentation of the governance structure for a nation. It reflects the collective conscience of the people who decided to provide for them a national identity. An identity that is unique and is a remnant of the forces of historical causation. For a country like India it entails the collective struggle for self-governance that transcended the parochial considerations of identity of all sorts, which however never failed to represent them equally. The civil struggle that resulted in the nationhood always possessed the morality and righteousness only imbibing within itself the principles of democratic pluralism. The Constitution of India thus a physical manifestation of the principles that the struggle represented. Call it the constitutional morality or whatever one may feel, but the apparent compromise that the assembly provided for the language question does not do justice to it. The recent move to print devanagari numerals in the latest 500 and 1000 rupees notes is one such move, whose legality otherwise is also questionable. It yet remains an unfulfilled promise for the regional languages to be accorded the equal treatment that they deserve. Fundamental to this is the recognition of the idea that a nation does not necessarily require a single language as its formative identity. From being the grandest of political experiment to a constitutional anachronism it is time for us evolve to become a inclusivist ideal that the world must strive for. Arriving at an equitable solution to the language question is an important step forward in this.